United States v. Dario Restrepo

Summary

The Ninth Circuit held that under the Sentencing Guidelines, a district court may consider uncharged conduct that is part of the same course of conduct or common scheme as the offense of conviction when calculating the base offense level, even if the defendant was not convicted of that conduct. The court also ruled that the preponderance of the evidence standard satisfies due process for sentencing enhancements, defining that standard as evidence sufficient to convince a reasonable person of the probable existence of the enhancing factor. Finally, applying the January 1988 Guidelines amendments did not violate the ex post facto clause because those amendments merely clarified the original Guidelines, which already permitted consideration of relevant conduct.

Holdings

1. The district court properly added the amount of drugs involved in uncharged counts and conduct that were part of the same common scheme or plan as the offense of conviction.
2. The preponderance of the evidence standard satisfies due process, and when used to increase the period of confinement, it means a sufficient weight of evidence to convince a reasonable person of the probable existence of the enhancing factor.
3. No ex post facto violation occurred because the October 1987 version of the Guidelines already allowed consideration of relevant conduct, and the 1988 amendments were clarifications that did not alter substantial personal rights.

Questions Presented

1. Whether the district court erred in considering conduct that did not result in Restrepo's conviction in determining his offense level under the Sentencing Guidelines.
2. What standard of proof is required to establish a factor enhancing a sentence under the Guidelines.
3. Whether the application of the June 15, 1988 Guidelines to Restrepo violated the ex post facto clause.

Disposition

affirmed